IN THE CASE OF:	  

		BOARD DATE:	      23 JULY 2009

		DOCKET NUMBER:  AR20090005415 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that there were extenuating circumstances surrounding the events that led to his discharge.  In an attached statement the applicant states that he was forced to leave his unit in an absent without leave (AWOL) status because his father had a serious injury and was unable to work. He was the eldest of ten children; therefore, he needed to go home and help his family.  He requested leave and his request was denied due to reasons he could not understand.  He states that although he loved the Army and wanted to continue his career, he felt he was forced to choose between the Army and his family, and he chose his family.  He states that when he returned to military custody he was detained in the stockade and advised to separate from the Army. He was told that remaining in the Army would hurt the Army which he did not want to do so he chose to be separated.  He states he was not given an explanation of his discharge.  He also states that he has a seventh grade education and he was told his IQ is below normal.  Since he has been separated from the Army he has been a productive member of society.

3.  The applicant provides a self-authored statement and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant enlisted in the Regular Army, on 24 May 1967, for a period of 
3 years in the rank of private (PVT)/E-1.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Cook).  On 
28 February 1969, the applicant reenlisted in the Regular Army for a period of 
6 years.  In March 1970, he completed training and was awarded MOS 95B (Military Police).  The highest rank he attained was specialist (SPC)/E-4.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he received his General Educational Development Diploma (GED) in 1972.

4.  On 10 June 1973, the applicant departed his unit in an AWOL status and was dropped from the rolls of the Army, on 7 July 1973.  On 6 May 1974, the applicant surrendered to military authorities at Fort Meade, Maryland and was confined in the post stockade.

5.  On 21 May 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).




6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 14 June 1974, the applicant was separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an Undesirable Discharge Certificate.  He had completed a total of 4 years, 4 months, and 17 days of creditable active military service during the enlistment under review and he had 330 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an Undesirable Discharge Certificate was normally considered appropriate at that time.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  There is no evidence available that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered, and there is no evidence that his undesirable discharge was inequitable or unjust.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His undesirable discharge was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The applicant’s discharge accurately reflects his overall record of service.

4.  The applicant states that he only had a seventh grade education and he did not understand the explanation concerning his discharge.  However, his record shows that he received his GED in 1972.  The applicant also consulted with defense counsel prior to making his request for discharge.  He authenticated a document acknowledging that he had been fully advised of his rights and that he understood those rights.  It was his responsibility to ask questions about anything that he did not understand.  The applicant did not provide any evidence nor was there any evidence in his record to support his claim that his chain of command denied his leave or that he was denied assistance with his personal problems.  

5.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   XXX_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20090005415



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ABCMR Record of Proceedings (cont)                                         AR20090005415



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